Lockdown to minimize the spread of the Coronavirus outbreak (COVID-19), imposed on 24th March 2020 for a period of 21 days involves quite a many legal issues. Various guidelines/orders/circulars have been issued from time to time by the Ministry of Home Affairs and other concerned departments announcing clarifications and exemptions.
The most important of these is exemption for “essential services” so that the supply of basic services and essential items may continue uninterrupted. Supply and sale of food, groceries, fruits and vegetables, dairy and milk booths, meat and fish, animal fodder is thus allowed, as such there are no restrictions on movement of “essential goods”. Chemists and medical equipment shops, among others, are also allowed to remain functional. Even e-commerce services for the delivery of these essential goods are also permitted. However, restrictions have been imposed on the unnecessary movement of people. Hospitals and all related medical establishments, including their manufacturing and distribution units are permitted to continue functional. People who are exempted from lockdown are basically those connected with maintaining essential services
STATUTORY PROVISIONS
Section 188 of the Indian Penal Code :
“188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. “
An act committed under this para is a Bailable and cognizable offence triable by any magistrate.
The MHA Guidelines stipulate the statutory provisions which can be invoked for the smooth implementation of the lockdown:
“Any person violating these containment measures will be liable to be proceeded against as per the provisions of Section 51 to 60 of the Disaster Management Act, 2005, besides legal action under Section 188 of the Indian Penal Code.”
Under Section 51 of DMA if any person refuses to comply with any direction given by or on behalf of the Government under DMA, he/she shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years.
Sections 52 to 54 provide for Punishment for false claim, for misappropriation of money or materials, etc., for false warning as to disaster or its severity or magnitude, leading to panic. Sections 55 and 56 are related to Offences by Departments of the Government and Failure of officer in duty or his connivance at the contravention of the provisions of this Act.
However, the maximum punishment under DMA is imprisonment for a period of 2 years with fine.
Onus is on the offender to prove absence of knowledge of the order which has been disobeyed, which is almost impossible in current circumstances as the news of the order has been widely disseminated.
A vast majority is obeying and complying with the lockdown orders, but many are venturing out for various reasons ranging from availing exempted services to buying necessities. Some are disobeying these orders for migrating due to wrong perception or for not being able to afford basic living necessities. A recalcitrant minority is also violating orders for fun. Law enforcing agencies need to handle all these cases differently. It is generally noticed that that police resort to use of force and even violence for enforcement.
Such violence by the police officer is not authorized under Section 188. However, a police officer may detain the offender for violating the lockdown orders. Such person ought to be released on bail on his plea to this effect, because the offence is bailable. Criminal court may take cognizance of an offence under these provisions only on a complaint in writing by the authorized public servant.
There are accusations of blatant violation of human rights by the police while enforcing lockdown orders.
In common perception, it is not justified to use disproportionate force. It has been observed that, many a times, persons who venture out to get essential goods are also treated as violators and police is resorting to violence. This is not only reprehensibly excessive, but also unjustified under the law, irrespective of the intention of the police force.
At times it is justified on the ground that such violation of the lockdown orders may result in making others potential victims aware of the virus. However, it has no express legal justification thus violates human rights.
In Bandhua Mukti Morcha v. Union of India and Ors, (1997) 10 SCC 549 Supreme Court reiterated that Right to life includes right to personal dignity as well. Article 21 of the Constitution of India assures the right to live with human dignity, free from exploitation. The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
Violence by police authorities is thus violative of right to life, it being without any statutory basis. It is generally so that the persons subjected to violence are from the weaker sections of society. This amounts to abuse of power and distances the general public from the police authorities. The Government must ensure that police authorities are sensitized about the limits laid down by the law on exercise of power by them.
Need of the hour is to formulate guidelines for the enforcement of lockdown by the police authorities. A relationship based on faith of the public on the police authorities is the need of the hour. For strict compliance of lockdown by the public to ensure successful eradication of COVID-19 the role of police must remain balanced and in full compliance of law.